Watada, the War and the Law

Jeremy Brecher and Brendan Smith | July 10, 2006

On July 5 the US Army brought charges against First Lieut. Ehren Watada, an infantry officer stationed at Fort Lewis, Washington, who has refused to deploy to Iraq with his unit because he believes the war there is illegal. Watada faces up to eight years in jail and a dishonorable discharge. But in trying the 28-year-old officer, the Army is really putting itself, the Iraq War and the Bush Administration on trial.

At the June 7 press conference announcing his decision, Watada argued[1] that the Administration's invasion and occupation of Iraq was "manifestly illegal" because it "violates our democratic system of checks and balances. It usurps international treaties and conventions that by virtue of the Constitution become American law." Watada also said, "As the order to take part in an illegal act is ultimately unlawful as well, I must as an officer of honor and integrity refuse that order."

His refusal to deploy was an act of courage. It was also the product of profound reflection on taking personal responsibility for halting the US government's careening course toward authoritarianism and criminality--and of the legal justification for such acts of responsibility.

Watada's most crucial legal claims were corroborated June 29 by the US Supreme Court, in what Duke University law professor Walter Dellinger calls "the most important decision on presidential power ever."

In Hamdan v. Rumsfeld, the Court rebuked[2] the Bush Administration not only for the Guantánamo tribunals but also for the entire view of executive power the Administration used to justify them. In a 5-to-3 decision, the Court ruled that the President cannot act contrary to "limitations that Congress has, in proper exercise of its own war powers, placed on his powers." That's just what Watada said[3] about Bush's policy two weeks before: "It violates the Constitution and the War Powers Act that limits the President in his role as Commander in Chief from using the armed forces in any way he sees fit."

The ruling also supports Watada's claim that the Administration is breaking international law. It found the President's conduct illegal because it violated international treaties--specifically, the Common Article 3 of the Geneva Conventions. This has ramifications far beyond Guantánamo: It means the government must obey the provisions of the Geneva Conventions--such as the ban on cruel and degrading treatment and the obligation of an occupying power to protect civilians. And it solidifies the incorporation of other treaties--notably, the UN Charter, with its ban on military aggression--into US law. (For a more extended discussion of the implications of the Hamdan decision for the Watada case, see our essay, Hamdan and Watada, on WarCrimesWatch.com[4].)

The Bush Administration has begun a massive effort to pass legislation that would nullify the Hamdan decision--enabled by Republican senators like Lindsey Graham, who told Fox News that "Congress can rein it in, and I think we should."

Citizen Resistance

The Supreme Court has no police under its command. So the question is, how will the limits Hamdan v. Rumsfeld has set on executive power be implemented?

One possible lesson lies in the Supreme Court's 1954 Brown v. Board of Education decision, in which the court ruled that "separate but equal" education was inherently unequal. In the face of this ruling, Southern states turned to what they dubbed "massive resistance," an effort to use every possible avenue to defeat the intent of the Supreme Court. Southern states convened special legislative sessions and passed laws to seize and close schools that had integrated; provided tuition grants and tax credits for segregated private schools; and repealed compulsory school-attendance laws. Mainstream civil rights organizations such as the NAACP were harassed and sometimes outlawed throughout the Deep South.

Ironically, this wholesale resistance to a Supreme Court ruling was the midwife to the nonviolent mass mobilization strategy of the civil rights movement. In a context where governments flouted the law, the Constitution and the Supreme Court with impunity, advocates of equality turned to citizen enforcement: bus boycotts, sit-ins, freedom rides, voter registration drives and civil disobedience. Over the next decade the movement created the conditions for the Civil Rights Act, the Voting Rights Act, the registration of millions of African-American voters and the ending of lynch law throughout the South. The lesson here is that when the government fails to enforce the law, it's possible for the people to organize to do so. Lieutenant Watada and his supporters are hoping his action will encourage them to do so.

Gulf War resister Jeff Paterson, who is helping to orchestrate Watada's sophisticated, web-based media campaign[5], said that when he talked to Watada before the lieutenant came to a decision, "The only thing he worried about is: Would it matter? Would anybody notice?" History suggests that the impact of actions like Watada's, using nonviolent civil disobedience to enforce national and international law, can be significant.

A trickle of resistance in the French military, based on refusal to participate in war crimes in Algeria, helped start a movement that in a few years brought half a million protesters to the streets of Paris in 1962 and helped end the Algerian War. Allegations of US war crimes in 1967 sparked a "call to resist illegitimate authority," led by pediatrician Dr. Benjamin Spock and others. Military physician Howard Levy's[6] refusal in 1967 to train Green Berets for Vietnam and the Vietnam Veterans Against the War's Winter Soldier Investigation[7] of war crimes in 1971 also played significant roles in the development of the movement against the Vietnam War.

Watada's argument bridges the concerns of those who are horrified by the Iraq War and its conduct and those who are disturbed by the Bush Administration's abuse of the Constitution and the rule of law. It addresses the soft underbelly of the Bush project--the subversion of US government in the name of the "war on terror." Watada's action is perfectly positioned to galvanize a movement that, like the civil rights movement, answers official "massive resistance" to law and justice with a resolute insistence that no one is above the law.

Restoring the Rule of Law

Friends and Family of Lieutenant Watada[8], a dedicated band that includes his immediate family, West Coast activists, and peace and veterans organizations, are mobilizing support for Watada's legal and moral arguments against the war. They believe his case offers a historic opportunity to challenge and end the illegal war and occupation of Iraq. On June 27, the day Watada's unit shipped to Iraq without him, demonstrations took place in more than thirty cities. Now supporters are launching a campaign to educate the public on his stand. They hope to organize a major event to coincide with his court-martial, which is expected in October. In the context of plummeting support for the war and cascading evidence of officially concealed criminal acts by US forces, such an event has the potential to focus public attention on possible US war crimes, just as the Winter Soldier Investigation did during the Vietnam War.

Under military law, soldiers have the right to refuse to carry out illegal orders; in fact, they have a duty not to commit war crimes. According to Article 32 of the Uniform Code of Military Justice, Watada retains the right to a preliminary hearing to "present anything he may desire in his own behalf, either in defense or mitigation." Under Article 46 defendants are allowed at trial to "compel witnesses to appear and testify and to compel the production of other evidence."

On its face the statute appears to allow a war crimes defense. In practice, however, defenses under international law are often denied, based on the military's "fundamental necessity for obedience," a principle affirmed by the Supreme Court in 1974. (Watada maintains he owes obedience to the Constitution--not to officials who are abusing it.)

There are precedents for raising war crimes issues in courts martial. Howard Levy was given a day to present a war crimes defense in 1967. He called three witnesses and provided 4,000 exhibits describing war crimes in Vietnam, but he was ultimately found guilty and sentenced to three years in prison. When Petty Officer Pablo Paredes[9] was court-martialed for refusing to go to Iraq, he was allowed to call an expert witness to make the case that the war was illegal. The military judge who found him guilty gave him a mild sentence with no jail time and astonishingly declared, "Any seaman recruit has a reasonable cause to believe that the wars in Yugoslavia, Afghanistan and Iraq were illegal."

Anyone who believes in justice should demand that Watada's court-martial provide him reasonable opportunity to prove the case for US war crimes in Iraq, including the right to subpoena witnesses and government documents. Without such rights, the court-martial will be nothing but a kangaroo court, violating the very national and international norms the Hamdan decision requires the government to respect. The many retired military officers and government officials who have questioned the legality of Bush Administration policies regarding torture and other criminal acts should feel a personal responsibility to lend their support to this officer's courageous defense of national and international law.

When Ehren Watada refused to deploy to Iraq, he struck a blow against the Iraq War. Bolstered by Hamdan v. Rumsfeld, his case could become a focal point in the effort to restore the rule of law in America, rein in executive power and spark a popular movement to end an unjust and illegal war.